Jewett v. Brady

United States Court of Appeals
For the First Circuit

No. 09-2486

WILLIAM JEWETT, JR.,

Petitioner, Appellant,

v.

BERNARD F. BRADY, SUPERINTENDENT,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.

John H. Cunha, Jr., with whom Charles Allan Hope and Cunha &
Holcomb, P.C. were on brief, for appellant.
Eva M. Badway, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.

March 10, 2011
 LYNCH, Chief Judge. William Jewett, Jr., was convicted

by a state court jury in November 1998 of the January 1993 rape and

murder of a young woman to whom he offered a ride home after a

party. That conviction and the denial of his new trial motion in

2003 were affirmed on appeal by the Massachusetts Supreme Judicial

Court ("SJC"). Commonwealth v. Jewett, 813 N.E.2d 452 (Mass.

2004).

Jewett appeals the district court's denial of his

petition for a writ of habeas corpus under 28 U.S.C. § 2254, in

which he claimed ineffective assistance of both trial and appellate

counsel. We affirm the district court, discussing the Supreme

Court's recent opinion on claims of ineffective assistance of

counsel in federal collateral attacks on state court convictions.

See Harrington v. Richter, 131 S. Ct. 770 (2011).

I.

A. The Underlying Crime

In federal habeas proceedings, "a determination of a

factual issue made by a State court shall be presumed to be

correct." 28 U.S.C. § 2254(e)(1); see also Evans v. Thompson, 518

F.3d 1, 3 (1st Cir. 2008). We summarize the facts as described by

the SJC in its opinion affirming Jewett's conviction and denial of

new trial. Jewett, 813 N.E.2d at 455-57. Jewett does not contest

the pertinent facts.

-2-
 Jewett and the victim1 had known one another socially for

years but were not involved romantically. They both attended a

party in Weymouth at the apartment of a mutual friend on the

evening of January 29, 1993. At the time, Jewett was nineteen; the

victim was seventeen. Sometime before 1:00 A.M., Jewett offered to

drive the victim home. His car, which was seventeen years old,

would not start, so a friend jump-started it and then followed

along for a short period in the friend's truck. The two vehicles

parted ways in a parking lot after Jewett said his car was fine,

though it was backfiring and running noisily.

The victim had a 12:30 A.M. curfew, and when she did not

arrive home by 1:00 A.M., her mother called the apartment where the

party took place. The next morning, the victim's parents and

friends began looking for her; when someone told her parents that

the victim had left the party with Jewett, her father called

Jewett. Jewett told the victim's father he had dropped her off at

the end of her street in Weymouth at about 12:30 A.M. because she

wanted to finish the beer she was drinking before going home.

A resident of Turner Road in neighboring Rockland

discovered the victim's dead body on his property that afternoon,

partially hidden in pine needles, twigs, and leaves. The state

medical examiner noted at the scene:

1
We use the term "the victim" to protect her privacy and
the privacy of her family, just as the SJC and district court did.

-3-
 [T]he victim's lipstick was not smeared, but her blouse
was pulled off her left shoulder, and two buttons in the
middle of the blouse had been torn off. Her pants were
buttoned, but the zipper was open and broken. One leg of
her pantyhose had been torn completely off, and one of
her boots was missing. Her underwear and pantyhose were
rolled up, and she appeared to have been redressed.

Id. at 456. Her missing boot was later found in Weymouth, three-

tenths of a mile from Jewett's home. Jewett was the last person

known to have seen the victim alive.

The medical examiner determined that the victim had died

at about 1:30 A.M., and that her body had probably been moved to

Turner Road after her death. Autopsy results, based on

observations of "scrapes, abrasions, and bruising to the victim's

face and neck, as well as hemorrhages on the surface of her face

and around her heart and upper airway," showed that the victim had

been strangled to death by "a soft ligature, fingers, or a

forearm." Id. at 456.

Semen recovered from the victim's underwear "revealed a

high probability that it had come from [Jewett]," and Jewett could

not be excluded as the source of the semen recovered from the

victim's vagina, though analysis of that semen was inconclusive.

Id.

Other evidence linked Jewett to the victim's rape and

murder. Three residents of Turner Road testified at trial to

seeing an automobile identical to Jewett's traveling down the road

-4-
with a single male occupant between 2:00 and 3:00 A.M. Two other

residents heard an automobile backfiring at around the same time.

Jewett's friends testified that on the morning after the

party, Jewett told them he "hoped nothing had happened" to the

victim because "he did not have an alibi." Id. Friends also

testified that for two days after the party, the defendant was

"nervous," "pacing," and "agitated," and denied to them, as he did

to the police, that he had ever had sexual intercourse with the

victim (even after newspapers revealed the DNA test results). Id.

Jewett was indicted for rape and murder four years later,

and while imprisoned awaiting trial, he confessed to Mark Obershaw,

a fellow inmate, that he had raped and murdered the victim. The

jury heard Obershaw testify to Jewett's confession. Jewett told

Obershaw that the victim "refused at the last minute" to have sex

with Jewett, "that he had sexual intercourse with her anyway, and

that when he finished, the victim started yelling that he had raped

her and that she was going to tell her father." Id. at 457.

Obershaw also testified that Jewett, after first telling

Obershaw that the strangulation was an accident, later told him he

"had to" strangle the victim to prevent rape charges. Id. He told

Obershaw he then "put the body in the trunk and drove to a street

where 'one of his best friends lived' because 'he knew a spot where

he could put the body.'" Id.

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B. Jewett's Trial, Appeal, and Collateral Attack

Jewett did not testify at trial; his defense was that the

victim had died of "positional asphyxiation" during consensual sex,

and that he had disposed of her body in a panic after she died.

Id. The defense at trial did not assert that there was anything

more than this one sexual encounter between the two. The jury

convicted Jewett of rape and first-degree murder by deliberate

premeditation, and Jewett received a life sentence.

In May 2003, while his direct appeal to the SJC was

pending, Jewett filed a motion in state court for a new trial

raising, among other claims, three claims that are relevant to the

present petition. First, he argued that certain evidence,

described in greater detail below and provided to the defense

before trial, showed that the sperm found in the victim's vagina

was from twenty-four to thirty-six hours before death. This, he

asserted, supported a theory that he and the victim had consensual

sex. Jewett argued this evidence, which the defense did not use at

trial, undermined the prosecution's theory that he committed the

murder to cover up his rape of the victim. He argued the

prosecution engaged in misconduct by depriving the jury of the

evidence and presenting a state-employed chemist's testimony that

he claimed the evidence impeached. Second, Jewett made a related

argument that his trial counsel was ineffective in failing to

develop and present to the jury this evidence that the sperm was

-6-
deposited twenty-four to thirty-six hours before death. Third, he

also argued that the trial court had erred in admitting physician

opinion testimony that the victim had been sexually assaulted, an

error not objected to at trial.

As to Jewett's two claims about the sperm age evidence,

the SJC noted the testimony of the chemist, Mary McGilvray,

regarding the two sperm samples recovered from the victim's body at

about 11:00 P.M. on the day her body was found--one sample from her

underwear, and one from her vagina.2 The samples apparently were

taken at least twenty-two hours after the estimated time of death.

[McGilvray] testified that none of the sperm cells in the
two samples she examined "had tails." She explained that
an intact sperm cell consists of a head, neck, and tail,
and that the tails are quite fragile, the first part of
the sperm cell to degrade after it is deposited in the
vagina. She testified further that the presence of
intact tails indicates that the sperm was deposited "more
recently as opposed to a longer period of time," but that
if no tails are present, she is unable to draw any
conclusion about the age of the sperm. McGilvray
testified that, in addition to degradation over time,
sperm tails can be shed by certain extraction techniques,
such as the process used to recover the sperm cells from
the victim's underwear.

Id. at 457-58 (footnote omitted).

The evidence that Jewett argued undermined McGilvray's

testimony, thereby supporting his misconduct and ineffective

assistance claims, consisted of two handwritten notes and a typed

2
The State Police Crime Laboratory report in the case,
also prepared by McGilvray, did not include any discussion of the
sperm samples other than to state that the sperm was present on
vaginal swabs and the victim's underwear.

-7-
police report, all of which were hearsay. The first handwritten

note, which State Trooper Scott Berna testified at a 2008

deposition he wrote after a conversation with McGilvray,3 reads in

relevant part, "Fm chemist Mary Lumley [McGilvray's maiden

name]--sexual contact of victim was approx. 24-30 hours prior to

death (NOT LESS Than 24 hrs.)." Berna testified that the note

recounted what McGilvray said to him.

The second note was written by Richard Craig, a detective

involved in the case who testified at his own 2008 deposition that

he wrote the note based on a conversation with Berna. The note

reads, "Mary Lumley--old semen--(nite before, i.e., may have had

sex Th--or Fri. afternoon.)" Craig testified he never spoke

directly with McGilvray about the information in the note.

Craig later wrote a typed report, which reads:

Last night, Trp. Berna had advised me that he'd learned
from the State Police Laboratory that while the post
mortem did not reveal that she'd been raped, it did
reveal that she'd had sex approximately 36 hours or so
before death, because there were small amounts of sperm
deep inside her vagina. The lab also confirmed small
deposits of 'old' sperm on her panties, which indicated
she had changed her panties some time after the sexual
encounter. The lack of sperm, etc., on her body would be
consistent with her having showered, as had been reported
to us earlier.

3
As the SJC stated, Jewett, 813 N.E.2d at 458, both
handwritten notes were unattributed; their authorship was
determined through the depositions allowed by the federal district
court.

-8-
Like his note, Craig's report was multiple hearsay, recounting what

Berna had said he learned from McGilvray.

The SJC assumed arguendo that all of this evidence was

admissible. Even so, it held that "in the context of the trial as

a whole, a rational juror could not have considered it new,

material, or helpful in any way, much less potentially

'dispositive.'" Jewett, 813 N.E.2d at 458. The SJC stated, "The

three hearsay statements are inconsistent and ambiguous. They

differ as to the estimate of the age of the sperm, and it is

impossible to determine whether any of the notations concerning the

time of sexual intercourse was attributable to McGilvrey [sic] or

rather was the mere speculation of the author." Id. at 458. In

addition, the SJC reasoned that the notes were not inconsistent

with McGilvray's testimony, because they could be interpreted as

saying that the sperm was deposited twenty-four to thirty-six hours

before recovery from the victim's body, consistent with the

prosecution's theory of intercourse near the time of death, see id.

at 458 n.5, even though the notes referred to the age of the sperm

at the time of death. Jewett did not take issue with this

conclusion by the SJC in his brief to this court, but seized on it

at oral argument. It is waived.

Further, the SJC reasoned, no other evidence corroborated

a theory of consensual sex the day before the victim's death. To

the contrary, friends had testified that Jewett and the victim were

-9-
not romantically involved prior to the night of the party. At

trial, defense counsel did not so much as mention the possibility

of previous consensual sex between Jewett and the victim. Id. at

458-59. The prosecutorial misconduct claim failed.

The SJC found that Jewett's claim of ineffective

assistance of counsel related to this evidence consequently failed

under its analogue to Strickland v. Washington, 466 U.S. 668

(1984), Commonwealth v. Saferian, 315 N.E.2d 878 (Mass. 1974). As

to the question of whether counsel's performance was deficient, the

SJC emphasized that trial counsel need not probe every

inconsistency in the evidence, "particularly where the alleged

inconsistency does not pertain to defense counsel's theory of the

case" and where the evidence is not even arguably dispositive.

Jewett, 813 N.E.2d at 458-59. As to the question of prejudice, the

SJC found that use of the sperm age evidence at trial would not

have made a material difference. The SJC held that, in the absence

of any other evidence consistent with a theory of a sexual

relationship between Jewett and the victim before the night of her

murder, Jewett had presented no plausible alternate theory of the

case based on the sperm age evidence. Id. at 459.

Addressing Jewett's claims of improper physician

testimony, the SJC agreed with Jewett that under state law, experts

may not opine on whether a rape has occurred where the jury is

equally capable of making that determination on the evidence in the

-10-
case. Id. at 462. However, the SJC found the admission of the

testimony had not "created a substantial risk of a miscarriage of

justice," the standard applied to unpreserved claims of error,

because there was sufficient other evidence on which a "rational

jury" could base a conviction, including both the state of disarray

of the victim's clothing when her body was found and Jewett's

jailhouse confession. Id. at 463. It also reasoned that the

defendant's conviction for first-degree murder suggested the jury

rejected his defense theory of consensual sex, since there was no

motive for purposeful killing other than covering up rape. Id.

Finally, the SJC found the murder conviction was unaffected by the

improperly admitted testimony, because it was based on other

categories of evidence. Id.

Jewett's appellate counsel filed a petition for rehearing

shortly after the SJC opinion was issued, arguing that appellate

counsel's own failure on appeal to present a claim that trial

counsel was ineffective in failing to object to the physician

testimony was ineffective assistance of appellate counsel. The SJC

denied rehearing.

Jewett filed this petition for habeas corpus in the

federal district court, presenting two then-unexhausted claims of

ineffective assistance of appellate counsel on direct appeal.4 The

4
Jewett also raised three other grounds for relief, but
these were each either abandoned or procedurally defaulted, and he
did not request a certificate of appealability on any of them.

-11-
district court stayed proceedings so that Jewett could pursue a

second motion for a new trial in state court. In both cases,

Jewett first argued that appellate counsel should have appealed the

trial court's purported error in refusing to strike a seated juror

who, distressed over the possibility of losing her job as a result

of being absent for jury duty, asked rhetorically, "What if I say

I automatically think he's guilty?" The trial judge explained that

state law prohibited her employer from firing her for serving jury

duty, and the juror returned to the jury room seemingly satisfied,

but Jewett's trial counsel argued the juror could have been biased

against him. Second, Jewett raised a claim based on appellate

counsel's initial failure to raise a claim of ineffective

assistance of trial counsel related to the improper physician

testimony claim. In his federal petition, Jewett also pursued his

claim of ineffective assistance of trial counsel related to the

sperm age evidence.

The state trial court denied the new trial motion without

a hearing, and, under the Massachusetts scheme governing review of

first-degree murder convictions, a single "gatekeeper" justice of

the SJC denied Jewett leave to appeal the denial to the SJC "for

the reasons stated in the Commonwealth's opposition" to Jewett's

motion for leave.

The federal district court allowed discovery relating to

the sperm age evidence, including depositions of trial counsel,

-12-
McGilvray, and three law enforcement officers involved in the case.

In an unpublished opinion, the district court held that the

gatekeeper justice denied Jewett's claim relating to the juror on

adequate and independent state procedural grounds. Jewett v.

Brady, No. 05-11849, slip op. at 7 (D. Mass. Dec. 23, 2009). The

court rejected Jewett's two other ineffective assistance claims on

the merits. Id. at 15-18. Jewett requested a certificate of

appealability on his three ineffective assistance of counsel

claims, which the district court granted.

II.

To recount, we are reviewing on habeas three ineffective

assistance of counsel claims, two as to appellate counsel and one

as to trial counsel. Jewett's other claims in state court are not

at issue here, but are discussed to the extent they relate to the

ineffective assistance claims. Jewett argues that the SJC

unreasonably applied the federal law governing his various

ineffective assistance of counsel claims. He also states generally

that the SJC made unreasonable factual determinations, but does not

challenge any particular factual finding.

A. Standards for Review

Under the Antiterrorism and Effective Death Penalty Act

("AEDPA"), if a state court adjudicated a claim raised in a habeas

corpus petition on the merits, its findings of law can be disturbed

only if they were "contrary to, or involved an unreasonable

-13-
application of, clearly established Federal law, as determined by

the Supreme Court." 28 U.S.C. § 2254(d)(1). "[S]ome increment of

incorrectness beyond error is required" to establish an

unreasonable application of federal law. McCambridge v. Hall, 303

F.3d 24, 36 (1st Cir. 2002) (quoting Francis S. v. Stone, 221 F.3d

100, 111 (2d Cir. 2000)) (internal quotation marks omitted). State

court findings of fact are "'presumed to be correct' unless the

petitioner rebuts this 'presumption of correctness' with 'clear and

convincing evidence.'" Yeboah-Sefah v. Ficco, 556 F.3d 53, 66 (1st

Cir. 2009) (quoting 28 U.S.C. § 2254(e)(1)).

The clearly established federal law governing ineffective

assistance of counsel claims is the framework established in

Strickland. Williams v. Taylor, 529 U.S. 362, 390-91 (2000). On

direct review under Strickland, a criminal defendant must show that

his attorney's performance was deficient and that he was

prejudiced--deprived of a fair trial--as a result. Strickland, 466

U.S. at 687. Massachusetts applies a "functional equivalent" to

the Strickland deficiency standard, Lynch v. Ficco, 438 F.3d 35, 48

(1st Cir. 2006), which requires a "serious failure by trial

counsel," Commonwealth v. Harbin, 760 N.E.2d 1216, 1219 (Mass.

2002), meaning a "serious incompetency, inefficiency, or

inattention" that "has likely deprived the defendant of an

otherwise available, substantial ground of defence," Saferian, 315

N.E.2d at 883. Reviewing courts "must indulge a strong presumption

-14-
that counsel's conduct falls within the wide range of reasonable

professional assistance" and represents sound trial strategy.

Strickland, 466 U.S. at 689.

The Supreme Court has recently reinforced the "doubly"

deferential standard that applies to a state prisoner's claims in

a federal habeas petition that a state court has unreasonably

applied the Strickland principles. In Harrington v. Richter, 131

S. Ct. 770 (2011), the Court reversed the en banc Ninth Circuit's

decision to grant Richter's petition.5 Id. at 780. "When § 2254(d)

applies," the Court cautioned, "the question is not whether

counsel's actions were reasonable." Id. at 788.

The Court explicitly emphasized two points. First, the

"pivotal question" in a federal collateral attack under Strickland

is not "whether defense counsel's performance fell below

Strickland's standard," but "whether the state court's application

5
The California Supreme Court had denied Richter's
petition in a one-sentence summary order, which the Supreme Court
held constituted adjudication on the merits for the purposes of 28
U.S.C. § 2254(d). Harrington v. Richter, 131 S. Ct. 770, 784-85
(2011). The Supreme Court held there was "no merit" to the
argument that the deferential review of § 2254 did not apply
"because the California Supreme Court did not say it was
adjudicating his claim 'on the merits.' The state court did not
say it was denying the claim for any other reason. . . . [I]t may
be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural
principles to the contrary." Id. Jewett does not argue that the
SJC failed to address any of his claims on the merits. We do not
decide whether the rule of Fortini v. Murphy, 257 F.3d 39 (1st Cir.
2001), under which de novo review has been available in this
circuit for habeas claims not expressly and individually addressed
by a state court, survives Harrington.

-15-
of the Strickland standard was unreasonable," id. at 785, that is,

whether "fairminded jurists" would all agree that the decision was

unreasonable, id. at 786 (quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)) (internal quotation mark omitted). Second, the

Strickland standard is a very general one, so that state courts

have considerable leeway in applying it to individual cases. Id.

The standard for habeas relief is "meant to be" difficult

to meet, since federal habeas corpus review of state court

decisions "is a 'guard against extreme malfunctions in the state

criminal justice systems,' not a substitute for ordinary error

correction through appeal." Id. (quoting Jackson v. Virginia, 443

U.S. 307, 322 n.5 (1979) (Stevens, J., concurring in the

judgment)). AEDPA's high bar for relitigation of claims

adjudicated in state courts "ensure[s] that state proceedings are

the central process, not just a preliminary step for a later

federal habeas proceeding." Id. at 787.

Another limit on federal habeas review is involved in

this case as well. A federal court will not consider a federal

habeas claim "if the decision of [the state] court rests on a state

law ground that is independent of the federal question and adequate

to support the judgment." Walker v. Martin, No. 09-996, 2011 WL

611627, at *6 (U.S. Feb. 23, 2011) (alteration in original)

(quoting Beard v. Kindler, 130 S. Ct. 612, 614 (2009)) (internal

quotation marks omitted). Procedural default of federal claims in

-16-
state court is an independent and adequate state-law ground barring

habeas relief, id.; see also Lynch, 438 F.3d at 44, so long as the

state regularly follows the rule and has not waived it by relying

on some other ground, Horton v. Allen, 370 F.3d 75, 80-81 (1st Cir.

2004).

These principles apply to Massachusetts state procedural

rules. Under Massachusetts's plenary review scheme for first-

degree murder convictions, Mass. Gen. L. ch. 278, § 33E ("section

33E") the SJC consolidates direct appeals with post-trial motions

filed while the appeal is pending. The court engages in broad

review of the entire trial record and can in theory sua sponte

address issues overlooked by appellate counsel. See section 33E;

Dickerson v. Latessa, 872 F.2d 1116, 1118 (1st Cir. 1989). But

review by the full SJC of any later post-conviction motions denied

by the trial court is available only if a single "gatekeeper"

justice of the SJC determines that the appeal "presents a new and

substantial question which ought to be determined by the full

court." Section 33E. A determination by the single gatekeeper

justice that the issues presented in an appeal are neither "new"

nor "substantial" is an adequate and independent state-law ground

precluding habeas relief when it rests on grounds of procedural

waiver in the trial court. Simpson v. Matesanz, 175 F.3d 200, 206-

07 (1st Cir. 1999). However, a determination that the issues are

"new" and simply not "substantial" resolves the claims on the

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merits and does not signal procedural default. Phoenix v.

Matesanz, 189 F.3d 20, 25-27 (1st Cir. 1999). This means the

gatekeeper's determination whether an issue is "new" is important

for determining whether there are adequate and independent state

grounds barring federal habeas relief.

The Commonwealth argues that the gatekeeper justice held

that Jewett's two claims regarding appellate counsel were

procedurally defaulted. The gatekeeper justice's opinion consisted

of the single sentence: "The defendant's application pursuant to

G.L. c. 278, s. 33E, for leave to appeal from the denial of

defendant's motion for new trial, is denied for the reasons stated

in the Commonwealth's opposition." That opposition, in turn,

argued both that Jewett's claims were not new--because (1) the

claim as to the improper physician testimony was just more argument

on an already-litigated claim, and (2) the claim as to the juror

was available on the SJC's plenary section 33E review because it

was evident from the face of the trial transcript--and that in any

event they were not substantial. Jewett replies that as a matter

of logic he cannot have procedurally defaulted claims that

appellate counsel was ineffective by failing to raise those claims

on direct appeal.

The Commonwealth's procedural default argument boils down

to the forceful claim that the section 33E scheme precludes federal

habeas review whenever the gatekeeper justice finds that claims are

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not "new" within the meaning of section 33E. This would bar

federal review of both claims that could have been brought before

but were not and claims that have already been brought. Thus, the

Commonwealth argues, Jewett's ineffective assistance claim

regarding the improper physician testimony is not "new" because, as

the Commonwealth argued to the gatekeeper, it was belatedly raised

and rejected on direct appeal. The Commonwealth also argues that

the gatekeeper justice found Jewett's claim related to the unhappy

juror to be not "new" because the SJC's plenary review under

section 33E can be presumed to catch any serious error that is

apparent from the trial transcripts.

The problem is that we do not know what the gatekeeper

decided, since the gatekeeper relied on the "reasons" in the

Commonwealth's opposition and those addressed both default and the

merits of the claims. Because "[t]he 'independent and adequate

state ground' doctrine is not technically jurisdictional" in habeas

cases, Lambrix v. Singletary, 520 U.S. 518, 523 (1997), we bypass

this issue and reach a decision on the merits, because these are

"easily resolvable against the habeas petitioner, whereas the

procedural-bar issue involve[s] complicated issues of state law,"

id. at 525. See also Yeboah-Sefah, 556 F.3d at 68 n.6 ("[B]ecause

we easily reject petitioner's claim on the merits, we need not

resolve th[e procedural default] dispute."); Delaney v. Bartee, 522

-19-
F.3d 100, 104 (1st Cir. 2008). The claims themselves are clearly

without merit.

B. Ineffective Assistance of Appellate Counsel

1. Juror Bias Claim

It would have been reasonable for the gatekeeper justice

to conclude, by adopting the reasoning in the Commonwealth's

opposition, that appellate counsel reasonably could have decided

that Jewett's claim relating to the juror was utterly meritless.

The trial judge immediately resolved the issue, and had wide

discretion over whether to excuse jurors. Counsel's choice to

focus an appellate brief on the strongest claims, omitting weak

claims, "might be considered sound . . . strategy." See

Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S.

91, 101 (1955)) (internal quotation marks omitted).

2. Physician Testimony Claim

Jewett also pursues his claim that his appellate counsel

was ineffective in failing to raise a claim on appeal that trial

counsel was ineffective in failing to object to admission of

improper physician testimony that the victim was sexually

assaulted. The SJC agreed with Jewett on direct appeal that this

evidence was improperly admitted, but found, as we have discussed,

that its admission did not create a substantial risk of a

miscarriage of justice, the standard applied by the SJC to

unpreserved errors. Jewett, 813 N.E.2d at 463.

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 Jewett has not shown that it was unreasonable for the

full SJC to reject his claim that without the improper testimony,

his trial might have a different result, the predicate for his

ineffective assistance of appellate counsel claim. Jewett's

argument that the evidence of guilt apart from the improper

physician testimony was weak is refuted by the SJC's summary of why

that erroneous physician evidence would have made no difference.

The SJC reasonably concluded that the murder conviction was based

on evidence showing that Jewett was the last person to see the

victim alive and had behaved strangely in the following days, that

the victim had been strangled, that eyewitnesses had seen Jewett's

car in the middle of the night in the area where the body was

found, that Jewett had sexual intercourse with the victim shortly

before her death, and that Jewett had confessed to Obershaw that he

had killed her. See Jewett, 813 N.E.2d at 463. And the rape

conviction was strongly supported by Jewett's unequivocal jailhouse

confession, as well as by the disarray of the victim's corpse. See

id. at 463.

Nor were the full SJC and the gatekeeper unreasonable in

rejecting the claim of ineffective assistance of appellate counsel.

The issue was briefed to the SJC on direct appeal, albeit

belatedly, which court, we presume, found it to be without merit.

See Harrington, 131 S. Ct. at 784-85 (stating that state court is

-21-
presumed to have denied a claim on its merits absent any signal to

the contrary).

C. Ineffective Assistance of Trial Counsel: Sperm Evidence

Finally, Jewett also argues that the SJC was unreasonable

in rejecting his claim that trial counsel was ineffective in

failing to develop and present to the jury a theory of the case

based on the three notes he claims establish that the sperm found

in the victim's underwear and vagina were deposited twenty-four to

thirty-six hours before her death, rather than much closer to death

as the prosecution's rape-murder theory required. The SJC's

decision rejecting this claim was reasonable.

Jewett argues that trial counsel should have used the

sperm age evidence to impeach McGilvray, the state's chemist. But

as the SJC found, Jewett, 813 N.E.2d at 458, the three notes were

themselves inconsistent as to when the sperm was deposited, with

estimates ranging from "Fri. afternoon," or less than twelve hours

before death, to "approximately 36 hours or so before death."

Nothing in the notes established that there was a report by the

state police lab stating that the sperm was deposited twenty-four

or even twelve hours before death. Nor was it clear that McGilvray

herself, rather than Trooper Berna or Detective Craig, concluded

that the sperm was deposited several hours before death. The notes

did not impeach the testimony of McGilvray, who in any event

testified not that the sperm was deposited just before death, but

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that because the sperm samples had no tails, "she [was] unable to

draw any conclusion about the age of the sperm." Jewett, 813

N.E.2d at 457 (emphasis added).

Jewett presents alternative theories of defense he says

trial counsel could have argued based on the sperm age evidence,

but he provides no evidence that he argued them to the SJC.6 In

fact, both the SJC and the district court found Jewett had not

adequately explained how the sperm age evidence would either

support his positional asphyxiation defense or lead to any

alternate theory that plausibly explained the evidence linking

Jewett to the victim's death. Jewett, No. 05-11849, slip op. at

12; Jewett, 813 N.E.2d at 459.

Finally, Jewett also argues that we need not defer to the

SJC's evaluation of the sperm evidence because the depositions

allowed by the federal district court "clarified the evidence."

The decision to grant discovery for "good cause" is within the

district court's discretion. Rules Governing § 2254 Cases Rule

6(a); Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007). We think

the issue is close in this case whether Jewett could show good

6
One alternate defense is the one Jewett maintained from
the day after the murder to the beginning of trial, but not at
trial: that he dropped the victim off at the end of her street,
"alive and healthy." The other defense keeps the positional
asphyxiation defense presented at trial, adding the new claims that
the two had consensual intercourse the day before, and that
ejaculation did not occur the night of the victim's death,
explaining the lack of newer sperm.

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cause for discovery, because the deficiencies of the sperm age

evidence are apparent from the face of the SJC's opinion. But

whether the discovery was warranted or not, the district court

itself noted, and after reviewing the record we agree, that the

discovery "has not uncovered anything that would alter [the SJC's]

analysis." Jewett, No. 05-11849, slip op. at 14-15.

Affirmed.

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